Citation Nr: 0811784
Decision Date: 04/09/08 Archive Date: 04/23/08
DOCKET NO. 06-22 286 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to special monthly compensation based on the need
for the regular aid and attendance of another person or on
account of being permanently housebound.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on active military duty from October 1950
to August 1952.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a rating action of the Department of
Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio. Specifically, in that decision, the Cleveland RO
denied special monthly compensation based on the need for the
regular aid and attendance of another person and on account
of being permanently housebound. Due to the location of the
veteran's residence, his appeal remains under the
jurisdiction of the VA Medical and RO Center in Wichita,
Kansas.
This appeal is being REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the veteran if further action is required.
REMAND
At the time of a June 2004 VA aid and attendance/housebound
examination, the veteran's only service-connected disability
was S1 radiculopathy with atrophy of the right lower leg
(30%, effective from February 1998 and 60%, effective from
March 2003). In addition, a total disability rating based on
individual unemployability due to service-connected
disability was in effect from March 2003. Since the June
2004 VA examination, and specifically by an October 2004
rating action, the RO granted service connection for the
following disabilities: a major depressive disorder (50%,
effective from March 2003) as well as degenerative joint
disease of the left knee (10%, effective from March 2003),
the right hip (10%, effective from March 2003), and the
lumbar spine (10%, effective from March 2003).
At a personal hearing subsequently conducted in September
2007 before the undersigned Veterans Law Judge at the RO, the
veteran testified that, as a result of his service-connected
disabilities, he has been confined to a wheelchair for the
past four years and needs assistance to dress and prepare
meals. Although he admitted that he is able to drive, he
stated that he never leaves his home without the assistance
of either his wife, daughter, or other family member.
Hearing transcript (T.) at 3-7, 9-17.
According to the veteran's testimony, however, he also
experiences occasional breathing problems. T. at 8. Indeed
evidence of record reflects VA and private treatment for
multiple nonservice-connected disorders, including diabetes
mellitus, hypertension, a myocardial infarction, diffuse
intermediate coronary artery disease angina, chronic
obstructive pulmonary disease, mild sensory peripheral
neuropathy of the lower extremities, and polio with right
lower extremity weakness and leg length discrepancy.
Consequently, in December 2007, the Board remanded the
veteran's aid and attendance and housebound claim for further
evidentiary development. In relevant part, the Board asked
the AMC to schedule the veteran for a VA examination in which
the examiner would express an opinion as to whether the
veteran's service-connected disabilities necessitate the aid
and attendance of another person (to include in order to
protect himself from the hazards of daily living).
Although the veteran was accorded a VA aid and
attendance/housebound examination in January 2008, the
examiner did not provide the opinions requested by the Board
in its December 2007 remand. The Board regrets the delay
caused by this current remand. Importantly, however, a
medical opinion concerning the effect of solely the veteran's
service-connected disabilities on his ability to care for
himself has not been obtained, as was requested by the Board
in its December 2007 remand. See Stegall v. West, 11 Vet.
App. 268, 271 (1998) (which finds that, as a matter of law, a
remand by the Board confers on the veteran the right to
compliance with the remand orders and that a remand by the
Board imposes upon the Secretary of Veterans Affairs a
concomitant duty to ensure compliance with the terms of the
remand).
Accordingly, further appellate consideration will be deferred
and this case is REMANDED to the AMC for the following
actions:
1. The veteran should be accorded a
pertinent VA examination to determine
the effect of his service-connected
disabilities on his ability to care for
himself and to leave his home. The
claims folder must be reviewed by the
examiner prior to the examination. Any
medically indicated tests should be
accomplished.
The examiner is asked to discuss the
manifestations associated with the
veteran's service-connected disorders.
In addition, the examiner should render
an opinion as to whether the veteran is
substantially confined to his place of
residence and immediate premises as a
result of solely his service-connected
disabilities and whether it is
reasonably certain that the
disabilities and resultant confinement
will continue throughout his lifetime.
Also, the examiner should render an
opinion as to whether the veteran is so
helpless (as a result of solely his
service-connected disabilities) as to
require the regular (but not constant)
aid and attendance of another person to
perform personal care functions of
everyday living or to protect himself
from the hazards and dangers incident
to daily environment. In determining
whether the veteran is able to perform
personal care functions, the ability to
dress and undress, keep oneself
ordinarily clean and presentable, feed
oneself, attend to the needs of nature,
protect oneself from the hazards and
dangers incident to daily environment,
and perform frequently required
self-adjustment of prosthetic
appliances should be considered.
2. Thereafter, the AMC should re-
adjudicate the issue of entitlement to
special monthly compensation based on
the need for the regular aid and
attendance of another person or on
account of being permanently
housebound. If the decision remains in
any way adverse to the veteran, he
should be provided with a supplemental
statement of the case (SSOC). The SSOC
must contain notice of all relevant
actions taken on the claims for
benefits, to include the applicable law
and regulations considered pertinent to
the issue on appeal, as well as a
summary of the evidence of record. An
appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter that the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
D. C. SPICKLER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).